The Particle Problem: Using RCRA Citizen Suits to fill Gaps in the Clean Air Act.

• Author: Wohlers, Kurt

While the Clean Air Act has done a substantial amount for the environment and the health of individuals in the United States, there is still much to be done. For all its complexity, the Act has perpetuated systemic inequities and allowed harms to fall more heavily on low-income communities and communities of color. This is no less true for particulate matter pollution, which is becoming worse by the year and is a significant cause of illness and premature death. This Note argues that particulate pollution, traditionally only regulated on the federal level within the ambit of the Clean Air Act, can be addressed through the Resource Conservation and Recovery Act's citizen suit provision. Such an approach has largely gone untested in the federal courts; however, there are strong arguments in favor of applying the citizen suit provision to particulate matter. This Note also advocates for a simple legislative change that could allow those most harmed by air emissions to seek redress. If adopted, this proposal would supplement the intricate regulatory framework of the Clean Air Act with a way for communities, particularly communities of color and poor communities, to seek relief when pollution slips through the cracks.

TABLE OF CONTENTS INTRODUCTION I. THE HARMS OF AIR POLLUTION A. The Current State of Air Pollution B. Environmental Justice and Impact on Marginalized Groups II. GAPS IN THE CLEAN AIR ACT A. Unregulated Pollution from Stationary Sources B. Harms from Permitted Sources III. THE RESOURCE CONSERVATION AND RECOVERY ACT A. The Unique Citizen Suit Provision B. RCRA Citizen Suits as a Gap-Filler in the Clean Water Act C. RCRA and Gaseous Matter 1. Cases Concerning Particulate Matter 2. Cases Concerning Gaseous Matter IV. PROPOSED SOLUTIONS A. Attempting More ISE Suits in PM Cases B. Amending the RCRA Citizen Suit Provision CONCLUSION INTRODUCTION

The complex regulatory framework of the Clean Air Act (CAA) has failed communities by allowing harmful pollutants to seep through the cracks of the law. This Note suggests a novel solution to some of those gaps: using the Resource Conservation and Recovery Act's (RCRA) imminent and substantial endangerment suit provision to prevent and remedy harms caused by air emissions. Part I discusses the current harms of air pollution and the unique impact of those harms on marginalized groups. Part II considers gaps in the CAA, using two examples as case studies. Part III introduces the RCRA citizen suit provision and considers how courts have treated this provision in the context of solid waste disposals in water and air. Finally, Part IV proposes a solution to fill gaps in the CAA through RCRA citizen suits. The RCRA citizen suit provision currently allows litigants to bring claims involving particulate matter, except where defendants are protected by Title V permit shields or where the suit concerns gaseous waste. In such cases, addressing these harms will likely require changes to the statutory language. This proposal engages with a precautionary principle--asking how little harm is possible rather than how much harm is allowable. It also equips communities with a tool to fight harms when and where they occur, rather than requiring reliance on a complex regulatory framework that often fails to protect those most affected by unbreathable and unlivable air conditions.

1. THE HARMS OF AIR POLLUTION

   While air quality regulation has brought some good, there is still much to be done. To understand where the CAA has gone wrong, it is necessary to discuss how particulate matter pollution impacts the lives of millions of people, including predominantly those in marginalized communities.

   1. The Current State of Air Pollution

      Particulate matter is "a mixture of solid particles and liquid droplets found in the air." (1) It often consists of dust, soot, organic compounds, and metals. (2) The United States Environmental Protection Agency (EPA) divides particulate matter into two categories: [PM.sub.10], which is generally ten micrometers or smaller, and [PM.sub.2.5], which is generally two and a half micrometers or smaller. (3) The EP A did not have a regulatory standard for [PM.sub.2.5] until 1997, and the effects of inhaling particulate matter are still not fully understood. (4) What is known is this: fine particles can enter the bloodstream, harm the respiratory system, and accumulate in the brain. (5) Particle pollution has been linked to dementia, cognitive decline, increased infant mortality, cardiovascular disease, childhood asthma, cancer, and nervous system harm, among other issues. (6) These harms are acute in metropolitan areas like Detroit, where environmental racism is pervasive, and every year 2,500 children have asthma attacks related to air pollution. (7) Lowering particle pollution by as little as 1 [micro]g/[m.sup.3] (one microgram per cubic meter) could prevent approximately 34,000 premature deaths every year in the United States. (8) Unfortunately, we are headed in the wrong direction. From 2016 to 2019, [PM.sub.2.5] concentration levels rose by 5.5 percent. (9)

      Wildfires, which have been on the rise in recent years, account for some of the increase in particle pollution in the United States. (10) Currently, wildfires account for up to 25 percent of pollution from fine particles. (11) Recent public health studies have found that in areas near major wildfires, there was a 10 percent increase in hospital admissions (12) and an 11.7 percent increase in CO VID-19 cases. (13) And barring a dramatic increase in efforts to abate greenhouse gas emissions and slow climate change, wildfires will only become more pervasive, intensifying the impacts of particle pollution.

   2. Environmental Justice and Impact on Marginalized Groups

      The ability to breathe depends on where a person lives. According to a recent study, "a child born in Los Angeles County in 2016 was exposed to 42% more fine particle pollution than the average child born in the United States." (14) And as Dr. Mustafa Santiago Ali, a founding member of the EP A Office of Environmental Justice, has remarked: "More people die [prematurely] every year in our country from air pollution than died from the wars in Iraq and Afghanistan, Vietnam, and the Korean War combined." (15) These harms are significant, and there is no question that the harms of air particle pollution have not fallen evenly across all groups. The areas most impacted by fine particle pollution in 1981 are still the areas most impacted today, and the areas least impacted--generally whiter and richer--are still the least impacted today. (16) Black Americans are exposed to 21 percent more fine particle pollution than the national average, whereas white Americans were exposed to amounts 8 percent below the national average. (17) Exposure to fine particulate matter from diesel trucks, construction work, and other industry sources depends on race. (18) In 1987, the United Church of Christ (UCC) issued a groundbreaking report finding widespread environmental racism in determining sites for toxic waste facilities. (19) This report, along with other evidence, played a foundational role in the creation of the environmental justice movement. (20) When the UCC reviewed their data twenty years later, they found that race still played a predominant role in understanding where toxic wastes were sited. (21)

      This also remains true for air pollution. Racial residential segregation through zoning policies, property laws, and credit rationing has allowed air pollution facilities more access to neighborhoods where marginalized groups live. (22) As of 2017, more than one million Black individuals live within a half mile of an oil and gas facility. (23) Many of the pollutants emitted from these facilities, such as methane and benzene, (24) will not be adequately covered by a solution that only applies to particulate matter. (25) Therefore, to address widespread environmental racism as it relates to air pollution, a proposal that contemplates gas emissions must be considered.

      The 2007 UCC Report suggests that environmental justice should emphasize a precautionary principle: instead of focusing on how much harm is allowable, the law should consider how little harm is possible. (26) This precautionary principle of harm elimination plays a guiding role in shaping this Note's solution. Rather than set maximum limits and permit some amount of pollution to go unchecked, this Note suggests a solution that seeks to stop harm whenever and wherever it occurs.

2. GAPS IN THE CLEAN AIR ACT

   Unlike the Clean Water Act (CWA), which begins with the presumption that a discharge from a point source requires a permit, the CAA's regulatory framework varies from state to state and pollutant to pollutant. (27) This complex framework creates a series of small gaps that together form giant holes, as discussed in Section ILA. And even when permits are required, they still enable harms. A solution that seeks to limit harm needs to consider the power of the permit shield, as illustrated in Section II.B.

   1. Unregulated Pollution from Stationary Sources

      While the CAA defines "air pollutant" broadly, (28) the reach of regulation permitted by statute is not nearly as broad. A list of what is not regulated, or underregulated, includes: pollutants not specified in the National Ambient Air Quality Standards (NAAQS) (29) or Hazardous Air Pollutant Standards, (30) nonmajor stationary sources, (31) sources in attainment areas, (32) existing sources, (33) and indirect sources. (34)

      For an easy example of the CAA's regulatory gaps, consider the Act's designation of attainment areas. Generally, the EPA looks at certain "criteria air pollutants" and determines if geographic areas meet the national standards for those pollutants. If they do not, they are designated as "nonattainment" areas subject to additional regulation to get them back on track. (35) But this structure ignores "hotspots," such as...